Today, TechFreedom filed an amicus brief, in a Florida federal trial court, in support of two trade associations’ lawsuit challenging SB 7072, Florida’s new social media speech code. SB 7072 requires large social media websites (among other things) to moderate content “in a consistent manner”; to “publish the standards, including detailed definitions,” it uses to moderate content; to “categorize algorithms used for post-prioritization”; and never to “willfully deplatform a [political] candidate.”
The law also declares that those websites “should be treated similarly to common carriers.” TechFreedom’s brief takes aim at this faulty “common carriage” theory.
“You can’t make something a common carrier simply by slapping a ‘common carriage’ label on it,” said Corbin K. Barthold, Internet Policy Counsel at TechFreedom. “Common carriage is a legal term of art with a specific history and meaning. At its core, common carriage is about transportation. The point of social media, however, is not to carry material along a pathway, as a truck goes along a roadway, or a telephone call along a wire. It is, rather, to offer a diverse array of differentiated media products.”
“Social media products are expressive, like newspapers and parades,” Barthold continued; “they therefore fit squarely within a First Amendment framework, not a common-carriage one. Unlike entities that are properly treated as common carriers, social media curate and edit the expression that they host. Curation and editing of expression is, quite simply, antithetical to the concept of common carriage.”
“Because SB 7072 blatantly violates the First Amendment, there is no need even to reach the topic of common carriage,” Barthold concluded. “But should the court see the need to address the common carriage theory, our brief explains in detail why it is a dead end for Florida.”
TechFreedom is immensely grateful to Lawrence G. Walters and Walters Law Group for their pro bono assistance in filing the brief.
We can be reached for comment at firstname.lastname@example.org. Read our related work:
- No, Florida Can’t Regulate Online Speech, Lawfare (March 12, 2021)
- Trading Big Tech For Big Government Will Backfire For Conservatives, Daily Caller (June 2, 2021)
- Justice Thomas’s Misguided Concurrence on Platform Regulation, Lawfare (April 14, 2021)
- Florida’s History of Challenging the First Amendment Shows DeSantis’ ‘Tech Transparency’ Bill is Doomed, Miami Herald (March 25, 2021) (paywall)
- Politics, Not Pragmatism, Is Driving Florida Anti-Big Tech Bills, Daily Caller (March 23, 2021)
- Governor’s Social Media Bill Is Unconstitutional and Unwise, Tallahassee Democrat (April 30, 2021)
- No, Florida Can’t Regulate Online Speech, Tech Policy Podcast Episode #287 (March 24, 2021)
- It Is Not the Government’s Job to Promote ‘Fairness’ Online, Salt Lake Tribune (April 9, 2021)
- The Wall Street Journal Misreads Section 230 and the First Amendment, Lawfare (February 3, 2021)
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